Lackas vs. Bahl and others. alleged waste thus committed by the defendants.1 An injunction is also prayed. The county court nonsuited the plaintiff; and he appealed from the judgment. W. J. Lander, for the appellant. The cause was submitted for the respondent on the brief of John C. & A. C. Neville. LYON, J. If any of the articles taken from the blacksmith shop by the defendants were fixtures, the title to which would pass to the plaintiff by the sheriff's deed under the foreclosure sale, it is not denied that the removal of such property was waste, or that this aetion may be maintained by the plaintiff to recover damages therefor. Whether such articles were fixtures, that is to say, a part of the freehold, is the main question argued by the respective counsel, and the only one which we have found it necessary to consider. It is not deemed advisable to go into an elaborate discussion of the law on this subject, because, as the proofs now stand, we are satisfied that, under all the authorities, some of the articles removed from the shop by the defendants were part and parcel of the freehold, and that the removal of them was waste. This is presumably true of the door-locks, of the iron fixtures imbedded in the masonry of the forge chimney, and 1Secs. 8 and 9, ch. 143, R. S. (Tay. Stats., 1695-6, §§ 8, 9) are as follows: "Sec. 8. If any person shall commit, or threaten or make preparations to commit, any waste on any real estate which shall be attached or levied upon by execution in any civil action, the court from which such execution or attachment shall have issued, or any one of the justices of the supreme court, or a judge of any court of record, shall, on the application of the plaintiff, either in term time or vacation, make an order restraining such person from committing any waste or further waste thereon. Sec. 9. Whenever any lands or tenements shall be sold by virtue of a power of sale in a mortgage, the person to whom a certificate of sale may be executed by the sheriff, pursuant to such sale, may maintain an action for waste against any person for any waste committed by such person on the premises after such sale." Goff vs. The Supervisors of Outagamie County and another. perhaps, also, of the ox-frame. The breaking of the chimney to remove such irons was also an act of waste. For these reasons, the nonsuit was improperly granted, and the judgment must be reversed. On the testimony before us, we purposely abstain from determining any more definitely the character of the alleged fixtures, or the rights of the respective parties therein. The testimony is quite meagre, and in some respects unsatisfactory, and those questions can be better considered and determined after the cause shall have been fully tried. By the Court.-Judgment reversed, and cause remanded for a new trial. GOFF VS. THE BOARD OF SUPERVISORS OF OUTAGAMIE COUNTY and another. TAXES. (1) Erroneous basis of valuation vitiates tax. 1. Where the assessor, in 1872, valued the lands in a town at what he thought they would bring at forced sale, knowing that this was less than the "value which could ordinarily be obtained therefor at private sale" (Laws of 1868, ch. 130, sec. 16), this violation of the statutory rule of assessment vitiates the tax, and a sale of the land for nonpayment of the tax will be restrained. 2. The complaint alleged other facts to show that the assessment was illegal and void, without alleging those above stated; but the latter appeared from the answer, as well as from the evidence of the assessor at the trial. Held, that the question above decided is presented by the pleadings; and if the complaint is defective in that respect, it is a proper case for amendment either before or after judgment. APPEAL from the Circuit Court for Outagamie County. Action to restrain the county treasurer from selling certain lands of the plaintiff, in the town of Cicero, for the unpaid Goff vs. The Supervisors of Outagamie County and another. taxes assessed against them in the year 1872, and to have such taxes adjudged illegal and void. After a description of the lands in question, and statements of the sum at which each parcel was assessed, and the amount of taxes charged upon each parcel in that year, the complaint alleges that the assessor, "in making the assessment of said lands for the year 1872, carelessly, heedlessly, negligently, and without reasonable care, precaution, view and examination, and with design to fraudulently discriminate against this plaintiff, so as to impose upon him more than his equal share of taxes in said town of Cicero, affixed the value of said lands thereto as aforesaid, being equal to the assessed value, or nearly so, of the best farming lands in said town, with the improvements thereon, when the assessor well knew, as the fact is, that said lands were all unimproved, and were valuable principally for the timber, originally, most of which had been cut and carried away from the said land before the assessment thereof for the year 1872 had been made as aforesaid; by which corrupt and fraudulent assessment as aforesaid, the taxes upon the land of plaintiff as aforesaid were largely increased, were unjust, unequal and inequitable, and a large amount of taxes for said year 1872, more than an equal proportion thereof, were by reason thereof imposed upon and charged to the lands of the plaintiff as aforesaid.” The complaint avers other facts which, it is claimed, render a large part of the taxes so levied, illegal and void; but they have not been considered by the court, and need not be stated. There is no other express averment that the lands were assessed upon a rule different from that prescribed by law; but it is alleged generally, that the taxes charged against the lands of the plaintiff "are unjust, unequal, inequitable and void." The defendants, by their answer, deny that the assessor discriminated against the plaintiff's lands in making the assessment of 1872, and aver that he valued the same "honestly, equitably, justly, fairly and equally with all other lands in said Goff vs. The Supervisors of Outagamie County and another. town of Cicero, and that the taxes assessed thereon were honestly, equally, equitably, legally, justly and fairly assessed on said lands, and that no discrimination whatever was made against the lands in the complaint described, either in assessing or levying taxes on said lands or otherwise." But the answer admits that the actual value of the taxable property in the town of Cicero, in 1872, was much greater than the assessed value thereof; "that the taxable lands in said town were mostly assessed at from one to two dollars per acre, and a few tracts, that were improved, at from three to five dollars per acre, while the actual value of said lands, as they are held by the owners and the plaintiff, is from eight to ten dollars per acre for wild, unimproved lands." On the trial of the action, the assessor who made the assessment in 1872, was called as a witness on behalf of the defendants, and on his direct examination testified that he assessed the taxable property in the town at what he thought it would sell for at forced sale for cash. On his cross examination, in answer to the question, "Did you assess these lands at what you consider their market value?" the witness said, "I don't think I did. I assessed them at what I considered they would bring at forced sale. I believe I know that the cash market values of the lands were something higher than those at which I assessed them." The trial resulted in a judgment dismissing the complaint on the merits, with costs; from which judgment the plaintiff appealed. For the appellant, a brief was filed by Warner & Ryan, and the cause was argued orally by Mr. Warner. To the point that the valuation should be made from actual view, and that a disregard of the law by the assessor in this particular would avoid the assessment, they cited sec. 16, ch. 130, Laws of 1868, and Hersey v. Supervisors, 37 Wis., 75. They also argued that an intentionally excessive valuation of lands, or fraudulent discrimination by the taxing officers with the de Goff vs. The Supervisors of Outagamie County and another. sign of making the owner pay more than his just proportion of taxes, would avoid the assessment, and the collection of the tax would be restrained. Milwaukee Iron Co. v. Town of Hubbard, 29 Wis., 51; Lefferts v. Supervisors, 21 id., 688; Const. of Wis., art. VIII, sec. 1. They then reviewed at length the evidence upon the facts alleged in the complaint to vitiate the assessment. For the respondents, a brief was filed by Myers & Kennedy, and the cause was argued orally by G. H. Myers. They contended that the complaint was not sufficiently specific, containing merely general charges of fraud and irregularity, without alleging facts and circumstances tending to support those charges (21 Wis., 185, 688; 22 id., 230; 29 id., 51,376; 15 id., 641; 7 id., 532; Moak's Van Santv. Pl., 270; 51 Barb., 116); that if the tax appeared to be equal and just, equity would not interfere by injunction on account of mere irregularities, though such as might avoid the tax at law (14 Wis., 618, 623; 15 id., 9, 15; 16 id., 1; 17 id., 284; 18 id., 92; 29 id., 375); and that the tax in question was not shown by the evidence to be inequitable. LYON, J. The admission in the answer, and the undisputed testimony of the assessor, show conclusively that the assessment in question was made upon a basis of value unauthorized by law. The statute provides that "real property shall be valued by the assessor from actual view, at the full value which could ordinarily be obtained therefor at private sale, and which the assessor shall believe the owner, if he desires to sell, would accept in full payment." Laws of 1868, ch. 130, sec. 16 (Tay. Stats., 400, § 31). The assessor valued the lands in the town of Cicero at what he thought they would bring at forced sale for cash, knowing, when he did so, that such valuations were less than their market value. The rule of the statute is as certain and easy of application as any which can be devised, and is in harmony |